The National Security Agency, Snowden and the US Constitution

Let’s pause for a moment and make a comparison of Clapper to Snowden. Which is worse – lying to Congress or revealing government lies?

The Fourth Amendment to the United States Constitution (1792)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When the United States Constitution was being adopted to rectify the apparent weaknesses of the existing government under the Articles of Confederation, critics of the new document charged that it would create a central government able to use its expanded powers to oppress the people.

Although supporters of the Constitution, the self-styled “Federalists,” vehemently denied that it would give the national government such dangerous powers, some of the most important states ratified it with the provision that amendments would be added to protect the rights of the people against governmental power.

These became the first Ten Amendments to the Constitution, known as the Bill of Rights, which were introduced in the First Congress in 1789 and officially adopted in 1792.

Considering the now prevalent focus on national security above all else, it cannot be emphasized too much that the fundamental purpose of the Bill of Rights was not to make the new government more efficient but to protect the citizenry from that very selfsame government.

As a result of the bombshell revelations about the National Security Agency (NSA) made by whistleblower Edward Snowden, it now appears that these restrictions on the power of the US government regarding the privacy and overall freedom of individuals are being ignored altogether in the name of protecting American security. Snowden, who was a contract worker for the NSA, left his job in May of this year, and his revelations began to appear in early June in “The Guardian,” a British newspaper.

At the present time, as Snowden makes clear, the NSA collects all phone calls, emails and text messages in the United States along with various other types of internet traffic, some of which require the forced cooperation of private companies. The “Washington Post” reported that a Snowden leak consisting of an internal NSA audit and other top-secret documents revealed that “[t]he National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.”

“Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.”

One “unintended interception” by the NSA involved a “large number” of telephone calls placed from Washington, DC when a programming error confused the Washington, DC area code 202 for 20, the international dialing code for Egypt. Now since this audit only covered the NSA’s Fort Meade headquarters and other facilities in the Washington, DC area, one would think that the NSA interceptors would automatically know the area code for Washington, DC so that the NSA would not accidentally end up with the phone records of members of Congress and other high-powered Washington figures. No use was apparently made of these records, however.

It must be mentioned that in the recent past the NSA was an agency so secret that it rarely received much notice even by civil libertarians, who generally focused on the CIA or the FBI. The inside joke was that the initials NSA stood for “No Such Agency.” In fact, the NSA is the largest intelligence agency in the US government.

The NSA focuses on signals intelligence—communications and electronic—which is becoming increasingly important as information technology advances at an astronomical pace, whereas the CIA concentrates on human intelligence. The NSA’s headquarters is located about half way between the cities of Baltimore, Maryland (20 miles distant) and Washington, DC (25 miles distant), on the grounds of Ft. George Meade. Although exact figures are not known to the public, the NSA, according to Wikipedia, is the state of Maryland’s largest employer and largest consumer of electrical power.

Although there were hints that the NSA was engaging in massive surveillance activities of questionable legality before Snowden’s revelations, the federal government tried to assure the US Congress and the American people that there was nothing to this—that all surveillance activities were quite limited.

For example, testifying on the subject at a hearing of the US Senate Select Committee on Intelligence on March 13 of this year, James Clapper, Director of National Intelligence, the highest ranking intelligence official in the US government, was asked by Senator Ron Wyden (Democrat-Oregon):

“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”While most American mandarins are skillful enough to evade telling anything close to the truth without having to rely on an outright lie, Clapper fumbled. “No sir,” he replied to Wyden and then added, “Not wittingly.” And Wyden has pointed out that Clapper was allowed to amend his statement after the hearing and could have removed the lie, but he refrained from doing so.

Let’s pause for a moment and make a comparison of Clapper to Snowden. Which is worse – lying to Congress or revealing government lies? Leading government figures and members of the of the mainstream media have made much of Snowden’s violation of his employment oath at the NSA to protect US government secrets and not to engage in unauthorized leaking of classified information for which the Justice Department has charged him with espionage and theft of government information. Some political luminaries, such as Senate Intelligence Committee Chair Dianne Feinstein (Democrat—California), have gone so far as to say that he should also be tried for treason, a federal crime that could entail the death penalty.

But how did Snowden harm American national security? He did not turn over military secrets to an enemy of the United States. He was not like those who smuggled atomic bomb secrets to Stalinist Russia, providing it with the wherewithal to destroy the United States. Rather than aiding a foreign government, Snowden aided the American people by telling them what their government was doing to them! As a matter of fact, America’s enemies, actual and potential, probably didn’t need a Snowden to inform them. Perfectly experienced in the dark arts of espionage, and organized in spy rings as opposed to being a lone individual, they no doubt have gained access to at least the information about the NSA’s activities that Snowden was able to obtain.

Philip Giraldi, a former CIA officer, now executive director of the Council for the National Interest, writes: “The fallback argument that Snowden has alerted terrorists to the fact that Washington is able to read their emails and listen in on their phone conversations—enabling them to change their methods of communication—is hardly worth considering, as groups like al-Qaeda have long since figured that out. Osama bin Laden, a graduate in engineering, repeatedly warned his followers not to use phones or the Internet, and he himself communicated only using live couriers. His awareness of U.S. technical capabilities was such that he would wear a cowboy hat when out in the courtyard of his villa to make it impossible for him to be identified by hovering drones and surveillance satellites.”

Since it is almost a certainty that America’s potential enemies already knew about what Snowden revealed, the only thing that Snowden did wrong was to violate his NSA oath, which, in this case, would seem to be about as morally binding as the pledge of loyalty made by members of the German military and civil government during the Third Reich to the person of Adolf Hitler. Needless to say, having sworn loyalty to Hitler did not protect any leading German official from punishment at the major Nuremberg Trial (1945-1946), where they were deemed personally culpable for the orders they followed. Contrary to what would seem to be the current conventional wisdom, the major Nuremberg Trial had little to do with the Holocaust but focused heavily on what was explicitly stated to be the major crime of Nazi Germany—the making of aggressive war, under the rubric of which, it should be added, would also fall such wars as the United States attack on Iraq in 2003.

We are told that the NSA oath of secrecy trumps Snowden’s belief that the activities he revealed were an unconstitutional threat to the American people, the contention being that members of the executive agencies cannot be allowed to follow their own interpretations of the US Constitution, which in Snowden’s case would seem to be an obvious interpretation of the document. But the German officials tried at Nuremberg were expected to have abided by the definition of an illegal aggressive war as set forth in the Kellogg-Briand Pact of 1928, to which Germany was a signatory, instead of abiding by the oath they swore to their nation’s leader. But was the meaning of this international document more apparent to the inhabitants of the 62 countries who signed it than the US Constitution should be to American citizens?

Getting back to Clapper’s lies to Congress, why isn’t there a demand in the mainstream that he be forced to resign or be punished severely for lying to Congress? Shouldn’t Clapper be charged with perjury? But absolutely no punishment whatsoever has been meted out to him. He remains in his high ranking position and is given important assignments. As is obvious, this is a total contrast to the draconian punishment that hangs over the head of Edward Snowden like the sword of Damocles.

In the eyes of the mainstream, an oath of secrecy to the NSA is considered sacrosanct but lying at a congressional hearing, an act of perjury, can be ignored. But how can Congress conduct its constitutionally-required oversight of the federal executive branch, which carries out the country’s laws, if officials of that branch lie to it about what is going on? Even if some high ranking members of Congress knew the real truth before Snowden’s revelations and were participants in the deception, certainly the effort was to keep the American people in the dark. How can American voters make intelligent decisions about their government if that government disinforms them about its activities? This is a total violation of the concept of constitutional democracy that the United States government constantly preaches for the rest of the world.

In campaigning for the Presidency, Obama promised transparency and openness in contrast to the devious nature of the previous Bush-Cheney regime. Such has not occurred. In fact, Obama seems to be outdoing his predecessors in illegal surveillance. As Senator Rand Paul (Republican—Kentucky) aptly described the situation (June 12, 2013): “In the United States, we are supposed to have a government that is limited with its parameters established by our Constitution.

This notion that the federal government can monitor everyone’s phone data is a major departure from how Americans have traditionally viewed the role of government. If this is acceptable practice, as the White House and many in both parties now say it is, then there are literally no constitutional protections that can be guaranteed any more to citizens. In the name of security, say our leaders, the Constitution has become negotiable.”

Paul concluded: “If the Constitution is to continue to apply, citizens must maintain their close watch on the eyes of government whose sleight of hand is making our rights no more than an illusion.”

Ironically, after staunchly defending the NSA surveillance program since Snowden’s revelations were made public in early June, President Obama in his August 9 press conference made a rhetorical volte face, announcing that he planned to overhaul the policy to make it “more transparent.” In line with the post-Snowden crescendo of criticism of the sweeping NSA surveillance policy, Obama stated: “Given the history of abuse by governments, it’s right to ask questions about surveillance, particularly as technology is reshaping every aspect of our lives.”

Let’s quickly review here the implications of what Obama was now saying. It would seem that Snowden did not provide any information other than what Obama now claimed the American people had a right to know—that is, the broad scope of the NSA surveillance.

Stretching credulity, Obama asserted that his seeming reversal was not due to the public uproar caused by Snowden’s revelations, but rather was something that he had been thinking about long before Snowden entered the picture. A reasoned discussion of the NSA’s activities, said the president, would have been better without Snowden’s leaks. “My preference—and I think the American people’s preference—would have been for a lawful, orderly examination of these laws; a thoughtful, fact-based debate that would then lead us to a better place.” He did concede that “Mr. Snowden’s leaks triggered a much more rapid and passionate response.” But he was sure that if he had “sat down with Congress and we had worked this thing through,” civil-liberties concerns would have been dealt with in a more appropriate, decorous manner. On the other hand, considering his alleged deep concern, why did the President allow his Director of National Intelligence to lie to Congress about the spying without then correcting him?

While Obama’s rhetoric harmonized with the criticism of the existing surveillance policy, he offered few specifics that would actually bring about any significant change. In fact, many astute critics pointed out that the President appeared to be engaging in a public relations effort to smother the firestorm of concern caused by the Snowden leaks, and thus get the American people to support the existing surveillance program, with only a few minor alterations being undertaken. In short, the program would still continue to violate the basic tenets of the Fourth Amendment to the Constitution and thus threaten fundamental American civil liberties.

When, on August 12, Obama ordered the creation of a review group to investigate the NSA’s surveillance activities, it first appeared that he had actually appointed James Clapper to lead the investigation! After an outcry about his seeming choice, the White House announced that Clapper would not be overseeing the review of his own agency, but rather only “establishing” the review group comprised of “independent outside experts.” But having Clapper involved in this process whatsoever gives one little confidence as to its likely objectivity. And there is even little assurance that the issue of Fourth Amendment violations would even be within the purview of the investigation. Rather, it is appearing more like the usual government whitewash.

There is an inevitable trade-off between security and liberty. But it is questionable if the American people have actually become more secure as a result of the NSA surveillance. For instance, after listening to NSA director General Keith Alexander make claims that his agency thwarted “over 50” terror plots in a Senate Intelligence Committee hearing on June 13, Senators Mark Udall (Democrat—Colorado) and Ron Wyden, both members of that committee, responded that they “have not yet seen any evidence showing that the NSA’s dragnet collection of Americans’ phone records has produced any uniquely valuable intelligence.”

It must be conceded, however, that even in relatively free countries wartime conditions ineluctably lead to a diminution of basic liberties and that, in some cases, such a reduction of freedom might be necessary for the survival of the freer society where the enemy, if victorious, would make the people of that country far less free and possibly kill and impoverish large numbers of them. Countries at war, undoubtedly, go overboard in suppressing anything that has the slightest possibility of aiding the enemy. And it is quite natural for a people at war to go overboard in such a matter when they think that their national survival or even personal freedom and lives are at stake, and governments at war invariably use propaganda to foster this type of thinking. Certainly those who run the state have a vested interest in making use of war to bring about an aggrandizement of state power.

The obvious lesson to be derived from this is that the best way to preserve individual liberty is to avoid war unless its prosecution is absolutely essential. And this would not be the case for the relationship between the United States and the countries and peoples of the Middle East where vital interests do not conflict. It seems apparent that it is America’s militant interventionist foreign policy in the region that has provoked the animosity against it. Consequently, it is reasonable to believe that any danger coming from that region would be much reduced, if not eliminated entirely, if the United States were not engaged in war or war-like activities against countries and groups there. Moreover, it would seem that the danger would be less if the United States did not defend and arm the Islamic countries’ major enemy—Israel—which oppresses their co-religionists.

It was prior American military intervention that even brought about the 9/11 attack. As Michael Scheuer, who headed the CIA’s bin Laden unit in the late 1990s, pointed out in his explosive work “Imperial Hubris” (2004), members of al-Quaida saw themselves as pursuing a “defensive jihad;” they did not hate America because of “what America is,” as the George W. Bush administration constantly pontificated, but because of America’s policies in the Middle East. Among those policies, Scheuer cited the United States’ unlimited support for Israel’s occupation of Palestine, its propping up of “apostate” Arab puppet governments, and its military occupation of Muslim land. [Scheuer, “Imperial Hubris: Why the West Is Losing the War on Terror,” 2004, pp. 9, 227]

Scheuer, who titles his current website “non-interventionism.com,” has grown increasingly critical of the role of Israel in shaping American foreign policy. He bemoans the likelihood that the United States “will keep taking any and all actions that protect Israel even though such actions incite the Muslim world’s steadily deepening hatred for America, and ensure that American kids will be fighting and dying in an endless war with Islam.”

Quite obviously, American military intervention in the Middle East has not improved the situation in the region, as is apparent in the continued violence and instability in Afghanistan and Iraq. Nor has it reduced the terrorist threat to Americans overseas as illustrated by the killing of US diplomats in the Benghazi consulate in Libya on September 11, 2012 after the “liberation” of that country and the recent closing of 19 American embassies due to the perceived threat of terrorist attack. Why is it that the United States, a half-a-world away from the Middle East, is more threatened by terrorism than non-Islamic countries that are in much closer proximity and which have conflicting interests with Islamic groups?

Simply put, the explanation is a militarily aggressive foreign policy which these other countries, to a large extent, eschew (those who emulate the United States to some degree do tend to have such a problem). So it can be said that the United States, in essence, brings terrorism on itself.

It is clear that instead of severely curbing fundamental American constitutional freedoms at home in the effort to combat terrorism, real and imagined, the United States should eliminate its militant interventionist policy and thus act like most other countries in the world. Then there would not even be an arguable need to reduce liberty at home.

Stephen Sniegoski, is the author of “The Transparent Cabal: The Neoconservative Agenda, War in the Middle East, and the National Interest of Israel”. Read more articles by Stephen J. Sniegoski at: http://home.comcast.net/~transparentcabal/

Dr. Stephen J. Sniegoski, Ph.D. earned his doctorate in American history,with a focus on American foreign policy, at the University of Maryland. His focus on the neoconservative involvement in American foreign policy antedates September 11, 2001. His first major work on the subject, “The War on Iraq: Conceived in Israel” was published February 10, 2003, more than a month before the American attack. He is the author of “The Transparent Cabal: The Neoconservative Agenda, War in the Middle East, and the National Interest of Israel”. Read more articles by Stephen J. Sniegoski atTransparent Cabal

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